The Indian Supreme Court has dismissed review petitions challenging its October 2023 verdict that refused to recognize the right of same-sex marriages or have civil unions in India.
A Five-Judge bench of Justices BR Gavai, Surya Kant, BV Nagarathna, PS Narasimha and Dipankar Datta found there was no error of law in the apex court’s judgment and no interference was warranted.
On 17 October 2023, a Constitution Bench of then Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha had ruled against recognizing same-sex marriages in India.
All the judges were unanimous in holding that there is no unqualified right to marriage and same-sex couples cannot claim that as a fundamental right, even under the much argued right to equality before law guaranteed by the Constitution of India under Article 14.
Curiously, however, the apex court’s decisions have recognized the equal constitutional citizenship of LGBTQ+ Indians and recognized sexual orientation and gender identity as fundamental rights.
Also read: To same-sex marriages, the Indian Supreme Court says “NO”
Honoring the doctrine of separation of powers, the apex Court had then opined that the Indian laws did not recognise the right to marry or the right of same-sex couples to enter into civil unions, and that it was up to the Indian parliament to make laws enabling the same.
The Court had also held that the Indian laws also did not recognise rights of same-sex couples to adopt children.
The majority opinion was delivered by Justices Bhat, Kohli and Narasimha with Justice Narasimha delivering a separate concurring opinion.
CJI Chandrachud and Justice Kaul had delivering their separate dissenting minority judgments had argued that same-sex couples are entitled to recognise their relationships as civil union and can claim consequential benefits.
While two of the majority judges, Justice Bhat and Justice Kohli have since retired, Justice Narsimha who formed the majority in the 2023 decision, was also part of the bench dismissing the PIL for review.
“We have carefully gone through the judgments delivered by Hon’ble Mr. S. Ravindra Bhat (Former Judge) speaking for himself and for Hon’ble Ms. Justice Hima Kohli (Former Judge) as well as the concurring opinion expressed by one of us (Hon’ble Mr. Justice Pamidighantam Sri Narasimha), constituting majority view. 4. We do not find any error apparent on the face of the record. We further find that the view expressed in both the judgments is in accordance with law and as such, no interference is warranted,” the Court said.
The review petitions filed against the 2023-judgment said the majority ruling suffered “from errors apparent on the face of the record” and was “self-contradictory and manifestly unjust”.
The judgment, the petitioners argued, “effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish the joys of a real family. It is fallacious that, under these facts, and in the absence of a fundamental right to marry or form a union, the rights to equal protection, dignity and fraternity are insufficient to justify judicial intervention”.
Dealing another blow to the champions of same-sex marriages, the apex Court decided otherwise.
“We do not find any error apparent on the face of the record. We further find that the view expressed in both the judgments is in accordance with law and as such, no interference is warranted. Accordingly, the review petitions are dismissed”, the Court added.